law

Edit:
I seems like I’ve done a bad job selecting words for my headline. Some people think that I am complaining because I “just” got $4000. I’m not complaining. It’s a not-so-successful formulation to say that this happened recently. Or like one of the commenters over at Reddit said:

“I assume that “just” refers to time. Meaning they only now, a short while ago, had to pay $4000.”

About a year ago I was surprised when I saw an image of my son in an ad for a shop called “Vinderen Elektriske”, selling electronics.

I immediately contacted the editor of the magazine in question, “Vinderen Magasinet”. She directed me to the advertiser and the designer behind the ad. I contacted the designer. She had found the image “on the internet” and reacted like I was rude and angry without any reason when I told her that she couldn’t use the image without my permission. I was obviously talking to a professional designer with absolutely no knowledge of intellectual property laws.

The use of my image is a very clear violation of several paragraphs in those laws. Both because I own the rights to the image and because they need permission from the easily recognizable person in the image.

So I called the manager of the shop responsible for the ad. He was not very friendly either and simply directed me to their lawyer. Probably in hope of me simply forgetting about it because I didn’t want to fight their lawyer.

Unfortunately for them this simply pissed me off. Seriously. I am not too difficult when it comes to people wanting to use my images. An apology and a suggestion for some kind of compensation would have been okay. But now I just went from a minor irritation to pure anger.

Fortunately I am pretty well connected and a couple of emails later I am in contact with the utterly talented Mr. Halvor Manshaus. You know, Jon Lech Johansen aka DVD-Jon’s lawyer. A lawyer you don’t want on your neck when discussing digital rights.

But he’s not cheap. Not even after a couple of beer and a very interesting discussion about technology and new media… And with this incident I don’t know if I’ll get any kind of economic compensation in the end, so I have to put aside thousands of dollars and prepare to cover the expenses if I lose.

Most people would probably just give up. That’s why this story is important.

Some weeks later I am fortunate enough to meet Mr. Jon Bing at a conference where we both where speaking. Jon Bing is a Norwegian writer and law professor at the Norwegian Research Center for Computers and Law. I tell him about the case. He tells me that the economic compensations people get in cases like these very often are pretty low. But he also says that the case is somewhat important and that I should go through with it to state an example. I should do my duty.

Okay. This would cost me time and money, but I’m pissed, the professor tells me I should do it and Halvor Manshaus is at my service.

I instruct Mr. Manshaus to go on and send a proposal to the lawyer that Vinderen Elektriske was using. He proposes a compensation of about $8000 and make it clear that they have violated Norwegian law of intellectual property. He also asks for documentation on exactly where they used the image.

After a while they reply that this is out of proportions and that they won’t pay more than something like $1000,- No apology and no documentation on the usage.

I don’t accept this. Mr. Manshaus sends another letter. This time with even more references to Norwegian law and a statement about the fact that I am willing to go on and charge them for violation of intellectual property law.

They fail to answer on time and we need to send a reminder with yet another letter. In the next letter they propose something close to $4000,- as long as I prove that it’s my son in the image(!) That’s not very difficult to prove. Because I don’t have the time and money to push this further I accept the $4000,- It’s enough to cover my expenses and leave some dollars that I will put away for my son.

Still, Vinderen Elektriske never gave me proper documentation on where they used the image. They never gave me any form of apology.

But at least it states an example. And I hope the designer now have learned that she can’t just use whatever she finds through Google Images and I hope Vinderen Elektriske are more careful the next time they put together an ad.

And there is another important lesson to be learned here. The one about communication and marketing. In about 20 seconds the owner of Vinderen Elektriske could have avoided:
– $4000,- in compensation to me
– Expenses for his own lawyer
– Bad publicity

How? Instead of answering

“We found the image on the internet. Talk to our lawyer”

He could have said something like

“Oh. I’m so sorry. Our designer must have made a mistake. We really liked your image. How can we fix this? Of course you should have some kind of compensation. Maybe you would give our shop a visit and pick a Nintendo Wii and some games for your son?”

Unfortunately they selected the other option. Pissing me off. Making sure I now hate really dislike Vinderen Elektriske. Making sure my family, most of my readers and huge amounts of people around the different forums where this story has been shared also hate dislike them.

A story to show the problem
If you have two shops down the street. One sell illegal copies of movies and one sell legal originals.

The shop with the illegal copies work like this: you go inside, find what you want, have a look at it, pay and go home. At home you play the movie on whatever equipment you want.

The shop with the legal originals work like this: you need to pass five security checkpoints before you can enter. You need to register with credit card and all kinds of data before you can buy. If you’re citizen of the wrong country you get thrown out. If you have the wrong media player you get thrown out. If you have the wrong operating system you get thrown out. You can’t have a look at the product before you buy. The product you buy is infected with huge amounts of commercials for other products and annoying videos telling you that piracy is a crime (yes, only the people that actually pay for their products get the “piracy is a crime”-propaganda).

…what shop would you choose?

And a quick disclaimer:
Don’t get me wrong. I don’t think piracy is OK. I am working within the content production industry. I know that it cost money to make high quality content. I think content producers should have the rights to earn money from what they make. The problem is that currently most of them have a very, very wrong idea of how to get paid and how to treat their customers.

Apparently I nearly killed a reader through pure boredom with my last post, so I hope this stuff is slightly more interesting.

A couple of weeks ago my father-in-law calls me wondering if I have started selling pictures of his grandchildren to commercials. He is talking about a picture of his grandson listening to an iPod. Used in an advertisement in a magazine he just received.

I haven’t sold any pictures of my son to commercials, so I was quite interested in this. As you can see from the picture that I have inserted above, my father-in-law had reason to believe that I was selling images to commercials.

The image is available through this article. And available for sale for editorial use over at shutterpoint. I am selling images both for editorial use and for use in commercials. Any images that include family members are only available for editorial use. The people responsible for this ad have not bought any pictures from me. And this particular picture isn’t even available with a license that would allow use in an advertisement.

Here at eirikso.com it is protected by the simple fact that this image is my intellectual property. Eirikso.com is also marked with a Creative Commons license. Giving people freedom to use my work for non-commercial purposes as long as they give me credit and issue the same Creative Commons license on the work that includes mine.

So what do we have here?
Commercial use of my image in an advertisement. And by the way, no image credit. These people have to follow Norwegian law. This use of my image is a violation to paragraph 1 in the norwegian copyright act. It is a screaming obvious theft of intellectual property.

In addition to this, it is a violation to paragraph 45 c. Use of an image where a person is clearly visible. They need permission from the person in the picture.

At this point I have sent a letter to the shop that is responsible for the advertisement. Asking for a full report on where this image have been used. They have simply forwarded this to their lawyer.

I have made it clear in my letter that this is something that is of interest for my readers and that I will publish articles on this matter. I am awaiting an answer and will of course keep you updated on this!

The internet gives everyone with a connection a powerful distribution channel. A potential to reach millions of people. 90% of the stuff out there reach a very small audience, but some of it reach out bigtime.

Two quick stories.

1. The customer representative from hell
Vincent Ferrari knew that AOL was known for trying to talk people out of their desicion to cancel their account. When he wanted to cancel an old account he recorded the conversation and posted an article on his blog. The story reach hundreds of thousands of people.

“I will make sure you will never be able to place an order on the internet again.” “I’m an attorney, I will sue you.” “I will call the CEO of your company and play him the tape of this phone call.” “I’m going to call your local police and have two officers come over and arrest you.” “You’d better get this through your thick skull.” “You have no idea who you are dealing with.”

Steady traffic, then huge amounts of traffic at the time of the article from Thomas Hawk. Then death. The last times I’ve tried to reach their web site there is a 404 not found.

Now this is all good. The phone conversation with AOL is solid evidence. Following the story from Thomas Hawk with all comments and links you get enough information to believe that Thomas did not make this story up.

But will the flow of information on the internet, with comments and links and all its open nature prevent this power from being abused? I don’t think so. Do you have any examples of people abusing their power as an unorganized and free guerillia “journalist”? Someone trying to harm without a good reason? An example where someone actually got fired or a company was ruined?

Thomas Hawk has an excellent comment on the fact that Joan Miro’s family just sued Google because they incorporated parts of his art in their logo on his birthday:

“So let’s get this right. Google chooses to create a special logo to honor the art and memory of Miro and his birth in 1893 and his family wants to get all pissy about it?”

I hope Miro turns in his grave in disgrace of his own family. This is just ridiculous.

It reminds me of the story from 1994 when Apple used the code name Sagan for their new PowerMac under construction. The name was only used internally and was chosen to honour the astronomer Carl Sagan. He did not like the honour and sued Apple for the use of his name. He lost the lawsuit, but the engineers at Apple gave in and changed the code name. They changed it to “Butthead Astronomer“. Sagan actually sued them again. And lost.

A coworker just joined a friend that bought himself a new set of tires for his car. He used a legendary and low priced dealer in Oslo. It is run by some extremely efficient and clever people looking like they divide their time 50% doing work for the shop and 50% lifting weights at the gym. Not the kind of people you would mess with.

At the entrance of the shop they have put up a sign that is kind of interesting here in heavily regulated and streamlined Norway. It says:

It’s old news, but a mod for “Grand Theft Auto – San Andreas” expands the game with some extra functionallity that actually lets the character you are playing make love. The game in it’s original state lets your character kill people, deal drugs, steal cars, shoot, knock people out etc.. For the americans, the original functionallity is OK. The game had a rating of “M” (Mature), that means suitable for people of 17 or older.

The odd thing is that the so called “hotcoffee” mod that added the functionallity for making love made the americans go completely mad. They are taking the game off the shelves and have changed the rating to “AO” (Adults Only), that is 18 years and over. The highest level possible.